In October 2003, the United Kingdom celebrated five years of the operation of its Human Rights Act 1998. The HRA gives domestic legal status to a range of civil and political rights – such as the rights to liberty and security, a fair trial, freedom of thought, conscience and religion — to which the UK was already committed under the European Convention on Human Rights (‘ECHR'). The UK experience of enacting the HRA offers several lessons for Australia.
Giving domestic effect to the ECHR formed part of the then Labour Opposition's platform in the 1997 election. Along with freedom of information and devolution, it formed part of a broader programme of constitutional reform. It sought to increase community awareness of human rights and to make it easier for individuals to enforce their ECHR rights in British courts. Previously, individuals had to take a case to the European Court of Human Rights in Strasbourg to enforce their rights, which often involved significant expense and delay.
There is an even greater need to ‘bring rights home' in Australia because of the absence of a binding, regional court where individuals can hold governments to account for human rights violations.
The UK and Europe
The UK was the first state to ratify the ECHR in 1951, having played a leading role in drafting the Convention. In 1966, the UK accepted the right of individuals to take a case against the UK government to the European Commission on Human Rights in Strasbourg. Since then, the UK has been found in breach of the Convention in a large number of cases by the Strasbourg court.
Prior to the enactment of the HRA, UK domestic courts could take the ECHR into account in limited circumstances, but public authorities like government departments, schools and hospitals were not required by law to respect ECHR rights.
The UK was among the last member states of the Council of Europe to incorporate the ECHR into domestic law — Ireland recently became the last to do so in 2003.
Preserving parliamentary sovereignty
The UK HRA does not override parliamentary sovereignty. Judges are not given the power to strike down legislation which is incompatible with human rights. Rather they must try to give effect to legislation in a way which is compatible with the human rights in the Act.
Only when a compatible interpretation is not possible may the courts take the modest step of issuing a declaration of incompatibility. This declaration cannot invalidate legislation; it is designed to bring the incompatibility to the attention of the parliament and the government and asks them to respond to it. It is then up to the Government and Parliament to decide how to respond.
The goal of this mechanism is to create a dialogue between the three branches of government as to how best to protect rights in a democracy. This draft Human Rights Bill also adopts this approach.
Far from the preservation of parliamentary sovereignty being ‘an impossible promise', as Janet Albrechtsen has claimed, in the five years since the HRA came into force only 17 declarations of incompatibility have been issued by the higher courts. Seven of these declarations were overturned on appeal. In the 10 remaining cases, the human rights violation has or will be remedied by a change to the law..
In the well known ‘Belmarsh' case, for example, the House of Lords held that legislation permitting the indefinite detention of foreign terrorist suspects violated the prohibition on discrimination. The government subsequently repealed the legislation and introduced new measures in the Prevention of Terrorism Act 2005, notably a system of ‘control orders' for terrorist suspects (which are themselves currently under challenge in the courts).
Human Rights promotion
Although the HRA has been in force for over 5 years, as yet the UK has no national human rights body charged with promoting human rights. That will change in 2007 when the Commission for Equality and Human Rights will be established. For the first time in the UK there will be a statutory body charged with the promotion and protection of human rights, as well as a unified approach to combating discrimination. Interestingly Australia has had the Human Rights and Equal Opportunity Commission (HREOC) since 1986 but no HRA or Bill of Rights.
The new UK Commission will have power to conduct strategic law enforcement through inquiries, investigations, legal assistance to individuals and judicial review proceedings.
Problems with implementation
Assessments of the impact of the HRA outside Parliament and the courts are mixed, particularly concerning the extent to which it has penetrated public services. Several studies have shown the limited extent to which a culture of respect for human rights has developed in the UK, and in particular the absence of understanding of the Act within public authorities (partly due to ambiguity over which public authorities are covered by the Act).
For example, in 2003, the Audit Commission reported that 58% of public bodies had not adopted a strategy for human rights and had no clear corporate approach, demonstrating no improvement on the findings for 2002. A more recent study for the Institute of Public Policy Research indicated that ‘the HRA has not yet been of sufficiently demonstrable value in improving standards in public services as the Government has intended when the Act was passed'.
In the absence of such a Commission as the driver of cultural change and public education, it has been left to independent bodies (and a haphazard government approach) to raise awareness of the HRA and its effects. If and when a HRA is enacted in Australia, the pre-existence of HREOC would hopefully ensure that similar problems of implementation and promotion within public services and the community at large could be avoided.
Despite the absence of a human rights commission, the HRA has significantly improved the protection of human rights in the UK. One of the most important aspects of the HRA, largely overlooked during the passage and early days of the Act, is the requirement that Ministers make a statement as to whether they consider Bills to be compatible with the rights in the HRA.
The compatibility of proposed legislation is one of the key human rights battlegrounds in the UK, and falls largely to the formidable Parliamentary Joint Committee on Human Rights, which scrutinises every Bill for compatibility with human rights and issues comprehensive reports to assist Parliament in reaching its own conclusions.
The JCHR is well respected and has had significant influence both on the passage of legislation and policy-making within Government more generally. It is made up of members of both Houses, and is assisted by an independent legal adviser and other administrative support. This system assists members of Parliament to make informed decisions about proposed legislation and greatly enhances Parliamentary debate.
Far from undermining Parliamentary sovereignty, in this respect the HRA lessens the role of courts further down the line by enabling Parliament to consider human rights principles at the initial stages of law-making. It is very welcome that these features are also part of this draft Human Rights Bill.
The HRA is not without its critics, even within the Labour government which brought it into being. But in the five years since the HRA came into force, British judges have decided cases sensibly and in a restrained fashion. By portraying the HRA and bills of rights as, in effect, ‘charters for terrorists and criminals', critics overlook the no less modest, but perhaps less headline-grabbing, role of the HRA in protecting basic dignity and respect for others.
The HRA has helped people in care, the elderly, the mentally ill and children in custody to attain basic standards of care and decency. It has assisted prisoners in Scotland who in the 21st century were still ‘slopping out' a bucket of excrement from their overcrowded cells. It has assisted families of people who have died in custody or hospital to find out the full details of what happened to their loved ones.
Human rights law is not just about the rights of terrorists, foreign or otherwise, it is about the rights of ordinary citizens to basic standards of dignity and decency.